Fain

Defendant William Archie Fain appeals from a judgment entered upon jury verdicts convicting him of first degree murder (Pen. Code, 187), three counts of forcible rape (Pen. Code, 261), [fn. 1] one count of forcible sex perversion (Pen. Code, 288a), two counts of kidnaping (Pen. Code, 207), and one count of attempted kidnaping (Pen. Code, 663, 207). In the penalty proceeding the same jury fixed the punishment at death. This appeal is automatic. (Pen. Code, 1239, subd. (b).) We affirm the judgment as to guilt but, under compulsion of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], we reverse as to penalty.

At dusk on June 19, 1967, high school students gathered in Dorado Park in Oakdale to sign each other's yearbooks. About 9 p.m. a classmate took Diana and Cathy to Diana's house, and a short time later another friend took the girls to the outskirts of town where they joined other classmates for a party. About midnight the girls resolved to return to Diana's house, where Cathy was to spend the night, and Mark Ulrich volunteered to drive them into town. The three were proceeding toward town when a car, its lights blinking on and off,…